Same Rule, Different State: Lawsuits Add Variety to H-2A Program
By James Larsen, Managing Attorney with over fifteen years of experience in the H-2A program.
As the legal landscape for H-2A visa program evolves, confusion and frustration reigns among agricultural employers and stakeholders. Recent court decisions highlight how geography and litigation influence the rules governing applications for the temporary labor certification under the H-2A program.
The DOL’s Worker Protection Rule - in Limbo and Based on Geography
On April 23, 2024, the Department of Labor (DOL) published the rule, “Improving Protections for Workers in Temporary Agricultural Employment in the United States, This rule took effect on June 28, 2024, with key enforcement provisions slated to begin on August 29, 2024. However, after 17 states, along with private organizations including the Georgia Fruit and Vegetable Growers Association and other farming groups, filed a lawsuit, the U.S. District Court in Georgia granted a preliminary injunction on August 26, 2024, preventing the rule's enforcement in those states.
Judge Lisa Wood's ruling emphasized that the plaintiffs were entitled to a tailored preliminary injunction rather than a universal, nationwide relief. She remarked that a nationwide injunction would give “a single district court an outsized role in the federal system,” which underscores the importance of localized legal contexts.
The Patchwork of Laws
That decision created a patchwork of regulations that vary significantly from state to state. Such variability complicates compliance for agricultural employers, especially those operating across multiple states. With farms frequently spanning state lines, navigating different requirements can lead to confusion about which rules apply where.
For example, in competing the ETA790, the first step in the application process under the H-2A program, the employer with a registered account is prompted to consider if:
-All places of employment where work will be performed under the Form ETA-790/790A are located in one or more of the following states: Arkansas, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Louisiana, Missouri, Montana, Nebraska, North Dakota, Oklahoma, South Carolina, Tennessee, Texas, or Virginia;
OR
The legal business name of the employer identified on the Form ETA-790/790A seeking to employ or jointly employ H-2A workers is “Miles Berry Farm;”
OR
The legal business name of the employer identified on the Form ETA-790/790A seeking to employ or jointly employ H-2A workers is a member of the “Georgia Fruit and Vegetable Growers Association” as of August 26, 2024.
Isn't it curious how a federal rule applies to everyone except three specific private companies and the states that filed the injunction? It’s fascinating to see how the legal landscape can dictate who’s in and who’s out!
This add yet another layer of complexity to the already convoluted system.
New Lawsuits Filed
The legal wrangling hasn't ended there. On October 8, 2024, a new lawsuit was filed against the new H-2A rule in the U.S. District Court of the Southern District of Mississippi. This latest case involves a coalition of organizations, including the International Fresh Produce Association and the American Farm Bureau Federation, and continues to challenge the DOL's authority regarding the H-2A program, seeking an injunction against the rule nationwide.
Compliance Challenges
Moreover, the DOL’s electronic filing system adds yet another layer of complexity. Employers must consistently update their applications and remain informed about shifting regulations and lawsuits, which can differ widely across jurisdictions. This constant need for vigilance makes it increasingly challenging for employers to stay compliant and plan their farming operations.
Moving Forward
Although it appears that the Department of Labor may be relenting and suspending enforcement of the new rule nationwide, portions of its informational website about the program still describe the rule as in effect without reference to the litigation. Additionally, its Foreign Labor Application Gateway (FLAG) contains a prompt regarding the rule not applying in certain situations, and the DOL's lawyers have now requested that only certain portions of the new rule be enjoined from enforcement. The results of these mixed messages and shifting legal landscapes are nothing short of confusing and head-spinning for agricultural employers. With constantly evolving regulations and conflicting information, navigating the H-2A visa process has become a daunting task, leaving many to wonder how to remain compliant amid such uncertainty.
Consulting attorneys knowledgeable in both federal employment and immigration law is crucial in this complex landscape. Managing attorney James Larsen leads our H-2A program, bringing over fifteen years of experience from firms such as Farmer Law, Ogletree Deakins, Foster Global, and the Bernard Firm.
For assistance navigating the H-2A program, contact Larsen Immigration Law Group at 512-774-5551 or info@larsenimmigration.com
Immigration law changes rapidly. This article is for informational purposes only, reflects the law as of its publication date, and may be superseded by later changes in the law, regulations or agency policy. It is not legal advice, and reading it does not create an attorney-client relationship.La ley de inmigración cambia rápidamente. Este artículo es solo para fines informativos, refleja la ley a la fecha de su publicación y puede quedar superado por cambios posteriores en la ley, las regulaciones o las políticas de las agencias. No es asesoría legal, y leerlo no crea una relación abogado-cliente.